Wagner v. La Salle Foundry Co.

• Decision Date: 02 April 1956
• Docket Number: No. 5,5
• Citation: 345 Mich. 185,75 N.W.2d 866
• Parties: Henry E. WAGNER, Plaintiff and Appellee, v. LA SALLE FOUNDRY COMPANY, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 866

75 N.W.2d 866

345 Mich. 185

Henry E. WAGNER, Plaintiff and Appellee, v. LA SALLE FOUNDRY COMPANY, Defendant and Appellant.

No. 5.

Supreme Court of Michigan.

April 2, 1956.

Lacey, Jones & Doelle, Detroit, for appellant.

Edward J. Ryan, Kalamazoo, for appellee.

Before the Entire Bench.

KELLY, Justice.

Defendant-appellant claims the workmen's compensation commission erred in finding that plaintiff-appellee was totally disabled because of pneumonoconiosis and in ordering the defendant to pay plaintiff $24 per week, but not to exceed $10,500.

Plaintiff, a man 68 years of age, a molder for 40 years, was first employed in a foundry in New York state. He subsequently worked as a molder for a St. Joseph, Michigan, foundry from 1924 to 1931, and at a foundry located at Benton Harbor, Michigan, from 1935 to 1944. Plaintiff then moved to Cleveland, Ohio, and was employed at 2 Cleveland foundries for 3 1/2 years. In 1948 plaintiff returned to Michigan and was employed for about 6 months at a Benton Harbor foundry. A period of approximately 1 1/2 years then elapsed when plaintiff did not work and lived during this period on his $75 per month veteran's pension.

Plaintiff was then employed by the defendant, LaSalle Foundry Company, for a period of not more than 5 weeks, namely, from June 7, 1950, to not later than July 14, 1950. Defendant's foundry is located in Detroit, and employs between 7 and 9 men.

Work became somewhat slack and plaintiff left defendant's foundry and was employed as a molder at a Cleveland, Ohio, foundry, where he had been previously employed. After working at his Cleveland foundry for 2 1/2 to 3 months he cut his thumb, and decided to return to Michigan and reside with his father-in-law. He thereafter lived on his government pension with his father-in-law and sought no employment.

Plaintiff testified that he first felt discomfort in his chest in February, 1951, but did not seek medical advice until February, 1952.

This appeal calls for a determination of legislative intent as expressed in part 7, § 9, of the workmen's conpensation act, which provides:

'The total compensation due shall be recoverable from the employer who last employed the employe in the employment to the nature of which the disease was due and in which it was contracted. If, however, such disease was contracted while such employe was in the employment of a prior employer, the employer who is made liable for the total compensation as provided by this section may appeal to said board for an apportionment of such compensation among the several employers who since the contraction of such disease shall have employed such employe in the employment to the nature of which the disease was due. Such apportionment shall be proportioned to the time such employe was employed in the service of such employers, and shall be determined only after a hearing, notice of the time and place of which shall have been given to every employer alleged to be liable for any portion of such compensation.

If the board finds that any portion of such compensation is payable by an employer prior to the employer who is made liable for the total compensation as provided by this section, it shall make an award accordingly in favor of the last employer, and such award may be enforced in the same manner as an award for compensation.' C.L.1948, § 417.9, Stat.Ann. § 17.228.

The commission was correct in stating:

'The specific question to be decided is whether the term 'employer who last employed', included in the provisions of section 9 quoted above, means last Michigan employer.'

In determining legislative intent as expressed in part 7, § 9, of the workmen's compensation act, this Court in Alexander v. Ford Motor Co., 329 Mich. 535, 46 N.W.2d 369, held that his section must be construed in connection with other pertinent provisions of the statute and that disablement of an employee from an occupational disease or disability shall be treated as a happening of a personal injury.

In determining what is meant by the 'employer who last employed the employe in the employment to the nature of which the disease was due', as set forth in part 7, § 9, consideration must be given to 2 other sections of part 7, namely, sections 1 and 2.

Part 7, § 1, of the act provides:

'Whenever used in his act:

'(a) The word 'disability' means the state of being disabled from earning full wages at the work in which the employe was last subjected to the conditions resulting in disability; * * *.' C.L.1948, § 417.1, Stat.Ann. § 17.220.

Part 7, § 2, of the act reads:

'The disablement of an employe resulting from such disease or disability shall be treated as the happening of a personal injury within the meaning of this act and the procedure and practice provided in this act shall apply to all proceedings under this part, except where specifically otherwise provided herein.' C.L.1948, § 417.2, Stat.Ann. § 17.221.

Part 2, § 1, of the act establishes the time and date of injury as follows:

'The term 'time of injury' or 'date of injury' as used in this act shall in the case of a disease or in the case of an injury not attributable to a single event be the last day of work in the employment in which the employe was last subjected to the conditions resulting in disability or death.' C.L.1948, § 412.1, Stat.Ann.1953 Cum.Supp. § 17.151.

In regard to the application of part 2, § 1, in the construction of part 7, appellee in his brief states:

'There appears to be some confusion among the profession as to the application of section 1 of part 2 to an occupational disease case compensable under part 7 of the act.

'There would appear to be some conflict between part 2, section 1, and part 7, section 2.'

This Court applied the provisions of part 2, § 1, in determining the date of injury in a pneumonoconiosis case in Stewart v. Lakey Foundry & Machine Co., 311 Mich. 463, 18 N.W.2d 895. To eliminate any possible existing confusion, this Court states that there is no conflict between part 2, § 1, and part 7, § 2, and the disablement to be considered as an injury as set forth in part 7, § 2, will be established as to time and date of injury by the provisions of part 2, § 1.

As we proceed to construe part 7, § 9, we consider part 7, §§ 1 and 2, and part 2, § 1, and combining the salient provisions of these 4 sections we establish the following: An employee is disabled when he cannot earn 'full wages at the work in which the employe was last subjected to the conditions resulting in disability', part 7, § 1; and said 'disability shall be treated as the happening of a personal injury', part 7, § 2; and to determine the time or date of injury there must be established 'the last day of work in the employment in which the employe was last subjected to the conditions resulting in disability or death', part 2, § 1; and then 'the total compensation due shall be recoverable from the employer who last employed the employe in the employment to the nature of which the disease was due and in which it was contracted,' part 7, § 9.

Defendant established the fact that plaintiff had been employed in Ohio foundries for more than 3 years and that his disablement resulted within 8 years after his last injurious exposure and, therefore, was entitled to benefits under the Ohio workmen's compensation act, R.C. § 4123.01 et seq., and further that no explanation was offered for plaintiff's refusal to claim workmen's compensation under the Ohio statute.

Plaintiff does not deny defendant's allegations in this regard, but contends that said argument is fallacious because the last employment might be in a State where there are no silicosis occupational disease benefits. Plaintiff further states that if defendant's interpretation of the statute is adopted, a Michigan employer could escape liability even though the employee had been exposed for years to hazardous dust conditions in its foundry.

The question naturally arises: If plaintiff and the commission's interpretation is adopted would not such a construction allow an employee to return to Michigan, after many years out-State employment, and claim compensation from a Michigan employer who had employed him for a short period of time, by proving that such employer was the last Michigan employer?

That question was not commented upon in the commission's opinion nor in plaintiff's brief, and was not answered by plaintiff's counsel when asked by this Court during oral argument. It is evident that neither the commission nor this Court could exercise legislative prerogatives and establish safeguards such as a minimum time of employment in Michigan or a maximum time of employment outside this State.

In its opinion the commission referred to the medical proof that plaintiff had moderate to advanced pneumonoconiosis of the silicosis type and stated (1) that plaintiff's condition could be due to his exposure in foundries and exposure to sand; (2) that the deputy commissioner found that the plaintiff's disability did not manifest itself while in the employ of the defendant but did manifest itself subsequent to his employment with an employer within the State of Ohio, and inasmuch as the date of disability is the date of injury plaintiff may not recover from an intervening employer in whose employment he was not disabled, hence his claim for compensation should be and the same was denied; (3) that there are no Michigan Supreme Court decisions bearing on this particular question; (4) that according to American Jurisprudence, pages 508-511, unless the intention to have a statute operate beyond the limits of the state or country is clearly expressed or indicated by its language, purpose, subject matter, or history, no legislation is presumed to be intended to operate outside the territorial jurisdiction of the state or country enacting it.

The commission's findings were as follows:

'It is our finding that the legislature, in enacting section 9 of part 7 of the...